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TWC, Consumers Largely Denied Requests In TCPA Litigation

(August 2, 2017, 5:26 PM EDT) — A New York federal judge on Tuesday rejected Time Warner Cable Inc.’s constitutional challenge to the Telephone Consumer Protection Act in a pair of proposed class actions over allegedly unsolicited calls, but also held that the consumers leading one of the suits hadn’t yet conclusively established that the system used for some of the calls was an autodialer.

U.S. District Judge J. Paul Oetken largely shot down a number of requests from both sides in suits accusing TWC of bombarding consumers with calls, finding, for one, that the TCPA holds up to strict scrutiny because it serves the government’s interest in protecting the privacy rights of telephone subscribers and is narrowly tailored to do so.

“As a general matter, the provision at issue ‘restricts a narrow slice of speech,’” the judge said. “It imposes liability only on a party using an autodialer or artificial voice to make calls without the recipient’s consent. It imposes no restrictions on calls not made using an autodialer or artificial voice, and it allows autodialer or artificial voice calls so long as consent has been secured.”

Judge Oetken continued, “Congress, in crafting this provision, carefully targeted the calls most directly raising its concerns about invasion of privacy, while also furthering its interest in collecting federal government debts.”

The judge went on to side with TWC in part on its bid for summary judgment in one of the actions, led by Leona Hunter and Anne Marie Villa, holding that the company is entitled to a quick win on the first calls it made to the consumers — whose numbers were reassigned to them after being held previously by TWC customers — under a safe harbor provision of the TCPA.

The consumers also didn’t meet their burden to show that TWC failed to maintain adequate do-not-call policies, Judge Oetken held. The TCPA bars telemarketing calls to people who requested not to receive them, but, the judge said, Hunter and Villa didn’t establish that the calls they received from TWC were made for telemarketing purposes, speaking about telemarketing only in general terms.

However, Judge Oetken wasn’t swayed by the rest of TWC’s summary judgment request, shooting down the company’s arguments that the pair of consumers lack standing and that it is immune from liability because it was trying to reach its customers, which did consent to receive the calls, among other contentions.

But the consumers fared no better, with the judge rejecting their request for partial summary judgment. The motion centered around a New York federal court’s decision in a similar suit called King v. Time Warner Cable that an interactive voice response system the company used when placing calls constitutes an autodialer under the TCPA.

Hunter and Villa contended that the King ruling — which is on appeal to the Second Circuit — barred TWC from litigating whether the interactive voice response system used to make several of the calls they received is an automatic telephone dialing system.

However, TWC countered, the consumers haven’t shown that the system used to call them was identical to the one at issue in King, asserting that “interactive voice response” is a generic term. And Judge Oetken agreed, noting that Hunter and Villa can try again if discovery reveals that there are no relevant differences between the systems.

The battle began in August 2015 with an alternate plaintiff, Raquel S. Mejia, who claimed TWC called her repeatedly using an autodialer in order to win back her business after she quit the company’s service in 2007.

Mejia petitioned the court in March to join her case with another one filed separately by Hunter and Villa and notified the court that her claims would be taken out of the subsequent amended complaint, which was filed later that month.

In that filing, both Hunter and Villa claimed to have answered several of TWC’s errant calls and asked for the calls to stop, explaining that the company had the wrong number. When the women answered, they were connected to a live representative after a pause — a tell-tale sign that an autodialer was used, the pair alleged.

TWC moved for summary judgment in December, contending that neither woman had put forward sufficient proof that the company violated the TCPA by calling them with an autodialer or by playing an artificial or prerecorded voice during unsolicited calls.

The consumers fought back in February, calling the request “an ambush” and saying TWC was trying to take unfair advantage after securing a stay of the discovery they would need to refute the company’s arguments.

The court is also presiding over a related case that was filed a few days after Mejia brought her suit, alleging that consumer Allan Johnson received calls from TWC made using an interactive voice response calling system that violated the TCPA.

TWC had asked for judgment on the pleadings in both cases, arguing that recent amendments to the TCPA creating exemptions for government-sent messages regarding debts, while punishing private companies that send similar messages, have created a law that favors certain speakers, content and viewpoints and violates the First Amendment.

The government stepped in to defend the legality of the TCPA in March, and the judge ultimately struck down the company’s argument on Tuesday.

The suits are Mejia et al. v. Time Warner Cable Inc., case number 1:15-cv-06445, and Johnson et al. v. Time Warner Cable Inc., suit number 1:5-cv-06518, both in the U.S. District Court for the Southern District of New York.

Ace Gets Initial OK On $9.8M Settlement In Telemarketing Suit

(April 26, 2017, 3:34 PM EDT) — A Florida federal judge gave preliminary approval Wednesday to a $9.8 million settlement of claims that Ace American Insurance bothered Do Not Call Registry members with nuisance sales calls, saying that all points of the deal lie within proper parameters.

Customers of Nationstar Mortgage and BB&T Bank who were also members of the National Do Not Call Registry sued in April 2015, saying the insurer autodialed them to advertise its insurance services and that the calls violated the Telephone Consumer Protection Act. Ace announced the settlement terms in January.

“The settlement agreement was entered into only after extensive arm’s-length negotiation by experienced counsel and participation in two extensive full-day mediations (and numerous subsequent follow-up conferences),” U.S. District Judge Marcia Cooke said in the preliminary-approval order.

The class includes bank customers who had been registered on the Do Not Call list for at least a month and who received calls from Ace — or on its behalf — starting in mid-October 2013.

Judge Cooke said the class meets all requirements under the Federal Rules of Civil Procedure, including commonality, typicality and predominance.

If and when the settlement receives final approval, Ace will pay $9.76 million into an interest-bearing escrow account. Plaintiffs’ attorney Jarrett Ellzey has previously told Law360 that each claimant will likely receive more than $100.

But for right now, Judge Cooke ordered that Ace give $300,000 to a settlement administrator who will begin work, including on class notice and a website. She appointed Kurtzman Carson Consultants as the settlement administrator.

A final-approval hearing is set for Oct. 4, and the class attorneys have indicated they will seek an award of up to $2.9 million, or 30 percent of the fund.

Ace announced the terms of the deal and asked for approval in January, noting at the time, “Ace denies that a litigation class properly could be certified. … Solely for purposes of avoiding the expense and inconvenience of further litigation, however, Ace does not oppose the certification of the settlement class for the purposes of this settlement only.”

An attorney for Ace was not immediately available for comment Wednesday afternoon.

Judge Cooke had stayed and partially dismissed the case in July 2015, citing the Supreme Court’s then-pending Spokeo decision, according to court records, but the case was reopened in July 2016.

The plaintiffs are represented by W. Craft Hughes and Jarrett Ellzey of Hughes Ellzey LLP.

Ace is represented by Matthew Ingber and Archis Parasharami of Mayer Brown LLP.

The case is Boise v. Ace USA Inc., case number 1:15-cv-21264, in the U.S. District Court for the Southern District of Florida.

Feds Defend Constitutionality Of TCPA In Time Warner Suit

(March 6, 2017, 3:17 PM EST) — The U.S. government stepped in Friday to defend the legality of the Telephone Consumer Protection Act, which Time Warner Cable argued was unconstitutional after being hit with a pair of proposed class actions in New York federal court by consumers who say they were bombarded with unsolicited calls.

U.S. Attorney Preet Bharara countered Time Warner’s claim that recent amendments to the TCPA creating exemptions for government-sent messages regarding debts, while punishing private companies that send similar messages, have created a law which favors certain speakers, content and viewpoints and violates the First Amendment.

Even if Time Warner’s argument was correct, the appropriate remedy would simply be to sever the 2015 amendment and leave the rest of the TCPA in place, including the provisions which make the cable company’s unsolicited calls to consumers using an automated telephone dialing system illegal, Bharara wrote.

“Because Time Warner’s alleged injuries would not be redressed even if the court were to declare the government-debt exception unconstitutional and sever it from the TCPA, Time Warner lacks standing to raise this challenge,” the attorney wrote.

Time Warner had argued that the new provisions turned the TCPA into a content-based law — one that targets speech based on its communicative content — that can only be justified if the government can prove it is narrowly tailored to serve state interests. At this point, the law can no longer withstand that strict scrutiny because it favors the government over private companies without justification, it said.

But Bharara pointed out that Congress, in enacting the law and its amendments, made “extensive findings” about its purpose of protecting privacy, an interest courts have acknowledged to be “significant.”

“The TCPA provision at issue here is narrowly tailored to protect that interest, prohibiting only the sorts of automated communications that Congress found most problematic and no more,” the attorney wrote.

Federal district judges, most recently in the battle between Facebook and a consumer who claimed the social media giant’s birthday reminder messages violate the TCPA, have found the law constitutional even in light of the government-debt exception, the U.S. attorney also pointed out.

Counsel for Time Warner on Monday did not immediately return a request for comment.

Time Warner raised the First Amendment violation argument in two separate but similar proposed class actions: one brought by Allan Johnson, and the other brought by Leona Hunter and Anne Marie Villa.

The latter two claim that they answered several of TWC’s errant calls and asked them to stop, explaining that the company had the wrong number. When they answered the calls, they were connected to a live representative after a pause — a tell-tale sign that an automated dialer was used, they alleged.

Aside from asking for judgment on the pleadings based on its constitutional argument, TWC also moved for summary judgment on Dec. 15, contending that neither woman had put forward sufficient proof that the company violated the TCPA by calling them with an autodialer or by playing an artificial or prerecorded voice during unsolicited calls.

For their part, the consumers have fought back that the cable company’s motion was “an ambush.”

Time Warner’s Bid To Nix TCPA Suit Is ‘Ambush,’ Court Told

(February 8, 2017, 9:43 PM EST) — Consumers accusing Time Warner Cable Inc. of violating the Telephone Consumer Protection Act by bombarding them with unsolicited calls urged a New York federal judge Wednesday to reject the company’s bid for a quick win based on a supposed lack of evidence, calling the request “an ambush.”

The summary judgment motion is “barefaced gotcha litigation,” Leona Hunter and Anne Marie Villa argued, contending that TWC is seeking to take unfair advantage after securing a stay of the discovery they need to refute its arguments against the proposed class action over the company’s alleged practice of making unsolicited telemarketing and debt collection calls to consumers.

“After relentlessly beseeching the court to stay classwide discovery pending various rulings in the appellate courts, TWC now seeks to dismiss the entire lawsuit — and consequently the entire class action — based on the purported lack of the very evidence it convinced the court to delay,” the consumers said. “Time Warner’s [summary judgment] motion has nothing to do with the merits of this lawsuit but relies entirely on evidence which, in Time Warner’s words, ‘plaintiffs did not develop, and therefore cannot adduce.’”

The case began in August 2015 with an alternate plaintiff, Raquel S. Mejia, who claimed TWC called her repeatedly using an autodialer in order to win back her business after she quit the company’s service in 2007.

Mejia petitioned the court in March to join her case with another one filed separately by Hunter and Villa and notified the court that her claims would be taken out of the subsequent amended complaint, which was filed later that month.

In that filing, both Hunter and Villa claimed to have answered several of TWC’s errant calls and asked for the calls to stop, explaining that the company had the wrong number. When the women answered, they were connected to a live representative after a pause — a tell-tale sign that an automated dialer was used, the pair alleged.

TWC moved for summary judgment on Dec. 15, contending that neither woman had put forward sufficient proof that the company violated the TCPA by calling them with an autodialer or by playing an artificial or prerecorded voice during unsolicited calls.

That same day, U.S. District Judge J. Paul Oetken handed down an order appointing Hughes Ellzey LLP, Siri & Glimstad LLP and Bursor & Fisher PA as interim class counsel. However, the judge also denied the proposed class’ bid for classwide discovery regarding the company’s interactive voice response system at that juncture.

TWC had opposed the discovery request, saying it would be significantly narrowing the suit by filing dispositive motions and that certain matters on appeal, particularly ACA International v. FCC, could affect the lawsuit’s scope, according to court filings. In that appeal, the D.C. Circuit is considering the FCC’s definition of the term “automatic telephone dialing system,” which ACA says is too broad.

In shooting down the consumers’ request, Judge Oetken held that part or all of the suit might be resolved through these sorts of pending issues, concluding that delay would be in the best interest of judicial economy.

However, the women said Wednesday, “the practical and unavoidable effect of the court’s stay on class discovery is that plaintiffs have not been able to conduct discovery into substantially all the issues raised in Time Warner’s motion.”

A summary judgment motion before the completion of discovery is successful in only the rarest of cases, and this case isn’t one of them, the consumers argued.

The pair also blasted TWC’s argument that the women couldn’t have received calls from an automated dialing system because the company uses the interactive voice response platform when placing phone calls associated with delinquent accounts, which doesn’t meet the FCC’s definition for the term.

TWC already lost that battle in a suit called King v. Time Warner Cable, wherein a New York federal court held that the company’s interactive voice response system is in fact an autodialer, according to the women. The matter is on appeal before the Second Circuit.

Overall, the pair said, TWC tries to paint itself as an innocent offender that made harmless calls to customers’ numbers that were reassigned, contending that it made the calls in good faith and had prior express consent from the intended recipients.

But TWC’s liability doesn’t stem primarily from the mere fact that it called numbers that were supposedly reassigned, the women argued. Rather, the issue is that the company failed to have a system in place to regularly update its customer information and capture reassigned numbers, the pair contended, claiming that doing so involves an administrative process commonly used in the telemarketing industry.

“The FCC’s interpretive order allows one free call as safe harbor in the case of reassigned numbers,” the consumers said. “TWC’s ‘good faith’ and third party ‘consent’ theories of defense have no place in the FCC’s interpretive scheme.”

Remodeling Co. To Pay $5.2M To End Telemarketing Suit

(October 12, 2016, 10:03 PM EDT) — A Pennsylvania federal judge on Wednesday greenlighted a $5.2 million settlement to be paid by Power Home Remodeling Group LLC over claims it violated the Telephone Consumer Protection Act by making telemarketing calls to more than a million consumers without prior consent.

U.S. District Judge Mark A. Kearney granted final approval of the deal resolving TCPA claims brought by named plaintiff Teofilo Vasco, saying it was fair, reasonable and adequate. For purposes of the settlement, the judge certified a class of more than 1.1 million consumers who received autodialed telemarketing calls or prerecorded, computer-generated voice messages from Power from approximately October 2013 to April 2016.

“The parties negotiated the settlement agreement at arm’s length with the benefit of a neutral, experienced mediator,” the 36-page ruling states. “Prior to the mediation sessions, the parties conducted informal discovery, including over one million pages of documents Power Home claimed constituted consent to receive calls from Power Home.”

The judge denied objections made by four class members, saying two opted out and thus no longer have standing to object, while the remaining two made largely unsupported challenges to attorneys’ fees and administrative costs. He noted that out of 1.1 million class members receiving notice of the action, more than 101,000 people responded, with only 155 opting out of the case.

“As the opt-outs and objectors account for less than 1 percent of class members, this factor weighs in favor of settlement,” he said.

Judge Kearney also approved attorneys’ fees of $1.3 million, or 25 percent of the settlement amount, along with litigation expenses of $20,000. However, the judge said the requested $5,000 service award for Vasco was too high, noting that the named plaintiff never appeared for a deposition, mediation or a court proceeding, and instead awarded him $3,000.

Representatives for the parties did not immediately respond to requests for comment Wednesday.

Vasco, who filed suit in August 2015, claims he gave his cellphone number to a Home Depot salesperson and later received 21 unsolicited phone calls from Power seeking his business by way of an autodialer or prerecorded voice message.

The parties agreed to mediation before a retired federal magistrate judge, and after two full-day mediation sessions, they agreed to settle the case in principle in March, according to court papers.

Wells Fargo, Carrington Must Pay $5M In Foreclosure Row

(November 12, 2015, 8:47 PM EST) — In legal settlement news, a Texas state jury awarded nearly $5.4 million to a couple accusing Wells Fargo NA and others of “robosigning” documents that led to the wrongful foreclosure of their home, holding that the banking giant knew that documents supporting the foreclosure were fraudulent.

After four days of trial and just four hours of deliberation, the jury on Tuesday found that there was “clear and convincing evidence” that Carrington Mortgage Services LLC and Wells Fargo, acting as Carrington’s trustee, knew that the supporting documents were a fraudulent claim on the property owned by Houston residents Mary Ellen and David Wolf.

The jury, which also deemed a lien transfer from Carrington’s predecessor company New Century Mortgage Corp. to Wells Fargo to be void, awarded the couple $5 million in punitive damages, $150,000 in damages for financial injury, $40,000 for mental anguish and $190,000 in legal fees.

Tuesday’s verdict is blow for Wells Fargo and Carrington in a long-running case that began as a putative class action in 2011. A class was certified in 2013, but that certification was overturned on appeal the following year, and the Wolfs pursued their individual claims to trial.

The case still requires final judgment by the court. A hearing is set for Jan. 11.

The Wolfs received a home equity loan of $400,000 from New Century in 2006, which was put into a pool of securitized mortgages in which Wells Fargo acted as the trustee. The couple claimed that the mortgages were not properly transferred into the mortgage trust and a valid chain of title did not exist.

The couple said that the transfer of lien — which was “robosigned,” or rubber-stamped, by a New Century employee named Tom Croft and given to Wells Fargo — was fraudulent, invalid and void because New Century did not own the Wolfs’ promissory note or deed of trust.

Thousands of foreclosure actions have been filed in Texas by Wells Fargo and the vast majority of them rely on sworn affidavits signed by Croft, according to the complaint.

“When a servicer files an affidavit that claims to be based on personal knowledge, but is not in fact based on personal knowledge, the servicer is committing a fraud on the court, and quite possibly perjury,” the fourth amended complaint said. “The existence of foreclosures based on fraudulent pleadings raises the question of the validity of foreclosure judgments and therefore title on properties.”

An attorney for the couple said that they were satisfied with the jury’s decision and hope it will prompt Wells Fargo to change their practices.

“Wells Fargo is doing this to thousands of other homeowners across the country every day,” said W. Craft Hughes of Hughes Ellzey LLP. “They know exactly what they are doing and are taking advantage of low-income homeowners who don’t have the means to hire a lawyer and are taking their homes without the right to do so.”

Time Warner Faces TCPA Suit For Robocalling Ex-Customers

(August 17, 2015, 12:21 PM EDT) — A former customer hit Time Warner Cable Inc. with a putative class action in New York federal court Friday, saying the company violated the Telephone Consumer Protection Act when it attempted to win back business by repeatedly calling through an autodialer.

Raquel S. Mejia, who says she stopped using TWC in 2007, alleges that since May the company has placed at least two unsolicited sales calls per day to her cellphone using an automatic telephone dialing system. She never gave TWC the consent legally mandated to place automated calls, and did not have a business relationship with the cable giant since 2007, according to the complaint.

She noted in the complaint several signs the calls were made by autodialers. For example, she would sometimes answer a call and only hear background noise at what appeared to be a call center. A live call center representative would often take a few moments before engaging her — an indication they were not actively aware of an automatic dialing system’s activities, she said.

When the sales representatives did engage in a conversation with Mejia, she says they identified her by name and used a scripted pitch to entice her to re-enroll in the company’s cable service. She invariably told the representatives she was not interested in their offers and to stop calling her, she said, but the calls did not stop.

“Based on the circumstances of the calls — including but not limited to the multiple calls over a short period of time, plaintiff was not immediately engaged by a live person … and defendant called despite plaintiff’s requests to defendant to stop calling (indicating a computer automatically dialed the number again) — plaintiff believed defendant called her cellular telephone using an ATDS that automatically selected her number from a computer database,” the complaint says.

Saying “the TCPA was enacted to protect consumers from unsolicited telephone calls exactly like those alleged in this case,” Mejia, on behalf of herself and all others who received similar allegedly illegal calls, is suing for an injunction against the practice and treble damages of $500 per TCPA violation. She is also seeking attorneys’ fees and costs, according to the complaint.

A spokeswoman for TWC declined comment Monday.

Last month, a New York federal judge ordered TWC to pay more than $229,000 for robocalling customer Araceli King, saying it was “incredible” the company continued to call even after she filed the TCPA suit. King claimed the recorded messages indicated the company was trying to reach a different TWC customer, Luiz Perez, for an overdue bill.

King inherited Perez’s former number, which she explained in a seven-minute phone conversation with a TWC customer service representative in October 2013, and asked that the calls stopped, according to the order by U.S. District Judge Alvin K. Hellerstein granting summary judgment to King. But King still received 153 phone calls seeking Perez after that conversation, more than 70 of them after she filed her lawsuit, according to the order.

Judge Hellerstein found that TWC knowingly violated the TCPA after King’s phone call with the customer service representative, and awarded treble damages of $229,500.

The case is Raquel S. Mejia, individually and on behalf of all others similarly situated v. Time Warner Cable Inc., case number 15-cv-06445 in U.S. District Court for the Southern District of New York.

Holly Freyja alleges that the Dun & Bradstreet called her cell phone and left prerecorded voicemails at least four times in July 2014. Freya said she never gave her phone number or consent to be called to Dun & Bradstreet, which provides credit reports, marketing lists and data services to businesses. The complaint says the repeated calls invaded her privacy.

It alleges that Dun & Bradstreet willfully violated the TCPA by using the automated dialer to make the unsolicited calls.

On July 17, Freya’s complaint says, she received a call on her cellphone from a number assigned to Dun & Bradstreet. The company left a voice message saying that Dun & Bradstreet wanted to speak with her about her business.

Concerned by the message, Freya immediately returned the call and was answered by a recorded greeting, the suit says.

She hung up because she didn’t want to listen to a recorded message, the complaint says.

Later that afternoon, Dun & Bradstreet left another prerecorded voicemail on her cellphone, according to the suit.

Freya “did not want to waste time returning returning the call to an automated system; she hoped the calls would simply stop,” the complaint says.

Dun & Bradstreet called Freya at least two more times, and since she owns a small business she became alarmed that something was hurting her business, the suit says.

Freya looked up the company on the Internet and found out that Dun & Bradstreet had made the same calls to many other people and that the calls were “nothing more than a ploy” marketing their business information services, the suit says.

The complaint says the proposed class is believed to contain tens of thousands of consumers.

Freya says she was not interested in Dun & Bradstreet’s offer and has never had a business relationship with the company.

The suit seeks $500 for each violation of the TCPA, with treble damages for knowing and willful violation, as well as an injunction ordering Dun & Bradstreet to stop all its telemarketing to cellphones and spam activities.

Representatives for the parties did not immediately return requests for comment Thursday.